The opinion
BROUSSARD, J.,—Concurring and Dissenting.
I concur in the majority opinion insofar as it holds that plaintiff adequately alleged the publication of defamatory matter, that the statutory absolute privileges are inapplicable to the instant case, that the absolute privilege of section 592A of the Restatement Second of Torts is inapplicable to the instant case, that the utterance in the instant case is not absolutely privi *160 leged, and that the trial court erred in sustaining the demurrers and dismissing the complaint.
However, I cannot agree with the view expressed in the majority opinion that all privileges in libel actions were resolved by the adoption of section 47 of the Civil Code, that adoption of the privilege in section 592A is for the Legislature and not for the courts, and that we may not in an appropriate case adopt the absolute privilege set forth in that section.
Traditionally, the law of defamation, and particularly the existence and definition of the privileges applicable thereto, has developed in the crucible of the common law. While the Legislature, of course, may add to or limit common law doctrine, the Legislature has limited itself in large part to codifying doctrine originally developed through our common law heritage by the courts. The balancing of reputation, free speech, the necessity of making available to the public the basis of governmental action, and permitting the free exchange of ethical and moralistic considerations has long concerned the courts as well as the Legislature.
By concluding that section 47 of the Civil Code and other statutory provisions define the reach of privilege in California, the majority determine that the courts need labor no more in this vineyard. The Legislature’s enactment of absolute privilege provisions in section 47 must be read, we are told, not only as an attempt to codify common law rules developed by the court with minor modifications but also apparently as a comprehensive attempt to define the law of privilege and a direction to the courts to cease and desist from examining new problems in the light of our modern society.
I do not read the enactment in 1872 of provisions now found in section 47, the legislative modifications of those provisions over the years, or the most recent amendments as reflecting a legislative intent to repudiate the traditional judicial function. While courts must follow legislative direction, we should not assume that the Legislature intended to abrogate the traditional court function in the absence of clear legislative expression.
Rather, the effect of legislative codification in section 47 of judicially created privileges is properly recognized in Saroyan v. Burkett (1962) *161 57 Cal.2d 706 [ 21 Cal.Rptr. 557 , 371 P.2d 293 ], where the court first recognized the absolute privilege of executive officials. “It thus appears that the problem of the extent, if any, to which executive officials have an absolute privilege cannot be satisfactorily resolved on the basis of the statutory language, the historical background of the subdivision or the California cases cited above, and a solution must be found by considering the treatment of the subject in the law generally. This approach is particularly appropriate in regard to the statute before us because it was evidently intended as a codification of the general principles developed by the courts.
“An absolute privilege for executive officials with respect to defamation was first recognized more than 20 years after the enactment of section 47. In Spalding v. Vilas (1896) 161 U.S. 483, 493, 498-499 [ 16 S.Ct. 631 , 40 L.Ed. 780 ], the Postmaster General of the United States was held to be absolutely privileged in regard to statements made to persons having business with his department. It has also been held that a cabinet officer is absolutely privileged with respect to statements to the press if they are connected with his official duties. (Glass v. Ickes, 117 F.2d 273, 281 [ 132 A.L.R. 1328 , 73 App. D.C. 3 ]; Mellon v. Brewer, 18 F.2d 168, 171-172 [ 57 App. D.C. 126 ].) Similarly, state decisions have recognized an absolute privilege as to statements made to the general public by a Governor and an Attorney General. (Ryan v. Wilson, 231 Iowa 33 [ 300 N.W. 707, 715-716 ]; Matson v. Margiotti, 371 Pa. 188 [ 88 A.2d 892, 899-900 ].)
“The rule as it has developed with respect to both federal and state officials of high rank is set forth in section 591 of the Restatement of Torts, which reads: ‘The President of the United States and the Governor of any State or Territory thereof, cabinet officers of the United States and the corresponding officers of any State or Territory thereof are absolutely privileged to publish false and defamatory matter of another in the exercise of an executive function, if the matter has some relation to the executive proceeding in which the officer is acting.’
“We are in accord with the rule granting an absolute privilege to state officials corresponding in rank to federal cabinet members.” (57 Cal.2d at pp. 709-710 (italics added); see Kilgore v. Younger (1982) 30 Cal.3d 770 , 778 et seq. [ 180 Cal.Rptr. 657 , 640 P.2d 793 ]; Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 412-413 [ 134 Cal.Rptr. 402 , 556 P.2d 764 ].)
*162 Given the traditional experience of court adoption of privilege in defamation cases and judicial definition, followed by legislative codification, today’s decision determining that legislative enumeration of privileges is exhaustive must be viewed as a radical departure from the long-settled relationship between common law evolution and legislative determination. I find nothing in the current version of section 47 to warrant the departure.
I also find nothing in section 47 which should preclude adoption of section 592A of the Restatement Second of Torts in an appropriate case. When we are confronted with a case where, compelled by the equal time doctrine, the television station has broadcast a candidate’s defamatory statement, we should be able to determine whether section 592A establishing an absolute privilege is applicable for the television station, whether a qualified privilege is applicable, or whether there is strict liability. In view of the long common law tradition, legislative silence should not permit abdication of the judicial responsibility to determine these questions. Yet, that is the result following from the majority opinion.
The petition of respondent Friedman for a rehearing was denied September 30, 1982.